A Fair Cop

Van Colle v Chief Constable of Hertfordshire 2008 3 WLR
593

Smith v Chief Constable of Sussex 2008 HRLR 23

We all recognise that the most important role of the police is
to detect and apprehend criminals thereby protecting the public.
For some of us this function conjures up images of Regan and Carter
of the Sweeney tearing around London in a Ford Granada in pursuit
of scary looking villains. What we do not always remember is that
informants and witnesses often fell by the wayside after being
exposed to danger, either intentionally or unintentionally, by the
dynamic duo in order to achieve their ultimate goal.

The question whether operational decisions taken by the police
in detection and apprehension should be subject to the scrutiny of
the courts and whether damages might be awarded if there are felt
to have been mistakes were considered by the House of Lords in July
of this year in the joint appeal cases of Chief Constable
Hertfordshire v Van Colle and Smith v Chief Constable of
Sussex.

Broadly the Lords endorsed the view that it is not in the public
interest for the police to be under a common law duty of care to
victims or witnesses when investigating crimes. This view was
originally proposed by the Lords in the cases of Hill v Chief
Constable of West Yorkshire (1989 AC 53) and Brookes v
Commissioner of the Police of the Metropolis (2005 1 WLR 1495)
which arose respectively out of the Yorkshire Ripper and Stephen
Lawrence enquiries. It was said that the Lords' justification for
this limitation of the common law duty was best explained by Lord
Steyn in the Brookes case when he said "such legal duties would
tend to inhibit a robust approach in assessing the person as a
possible suspect, witness or victim. By placing general duties of
care on the police to victims and witnesses the police's ability to
perform their public function in the interest of the community,
fearlessly and with despatch, would be impeded."

This approach was sufficient for the majority of the Lords to
reject Mr Smith's claim. Smith had claimed damages from Sussex
Police for a breach of an alleged common law duty of care owed to
him. His complaint was that they failed to act on information he
had passed on to them about threats made by his former partner Mr
Jeffrey. The threats were made in a series of messages, which even
those who have not mastered the art of texting would have
interpreted as serious. The import of "u are dead; I'm looking to
kill u and no compromises" is pretty clear.

Smith alleged the police did not properly investigate his
complaints and as a result Jeffrey came around to his house and
seriously assaulted him with a claw hammer. For the reasons quoted
the Lords decided that the police did not owe a duty of care to Mr
Smith in those circumstances.

The situation in the Van Colle case was different. His
relatives brought a claim against the Metropolitan Police not at
common law but under the Human Rights Act 1998. The Act obliges the
Metropolitan Police as a public authority to act in a way which is
compatible with the European Convention and in particular article
2(1) the right to life being protected by law. The facts were also
different in that Mr Van Colle was a witness in a theft case and
was shot dead by the accused just prior to trial.

His relatives claimed that the Metropolitan Police in terms of
their obligations under the 1998 Act were required to protect Mr
Van Colle's right to life and that in allowing him to die they had
failed to do so. The Act makes a specific provision for
damages to be awarded in certain circumstances and Mr Van Colle's
relatives were successful at first instance and in the Court of
Appeal.

The Lords overturned the Court of Appeal and rejected the
family's claim on the basis that the appropriate test for liability
had been misapplied.

It was agreed that the test had been identified in the case of
Osman v United Kingdom (2000 29 EHRR 245) as "it must
be established to the courts satisfaction that the authorities knew
or ought to have known at the time of the existence of a real and
immediate risk to the life of an identified individual or
individuals from the criminal acts of a third party and that they
failed to take measures within the scope of their powers which,
judged reasonably, might have been expected to avoid that
risk".

The Lords confirmed that the test was uniform (no pun intended)
and objective and required to be applied to the facts and
circumstances that the individual, in this case a police officer,
was or ought to have been aware of at the material time. They
rejected the suggestion of the lower courts that the conduct of the
state authority in making Mr Van Colle a witness had specifically
put him at risk and therefore that a test lower than that
identified in Osman should be applied.

Because the lower courts had misapplied the test the Lords
reviewed the evidence afresh themselves and unanimously held that
nothing in the conduct of the accused or other facts known prior to
the event ought to have alerted the police officer dealing with the
matter that there was a real and immediate risk to Mr Van Colle's
life.

The upshot of these decisions is that any future cases in
similar circumstances are likely to be be brought solely under the
Human Rights Act. The Lords made it clear that the Osman test is a
very strict one and the circumstances in which a claim would be
successful were likely to be fairly extreme.

The Lords also emphasised that police may still be liable at
common law for operational decisions taken in other circumstances
for example when dealing with a road accident.